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Chapter 25 2009 Antidumping Manu

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					                                         CHAPTER 25
                        SECTION 751(c) FIVE-YEAR (“SUNSET”) REVIEWS

                                                      Table of Contents

I.     INTRODUCTION ...............................................................................................................1

II.    CONDUCT OF SUNSET REVIEWS
       A. Initiation .........................................................................................................................3
       B. Participation in Sunset Review ......................................................................................4
          1. Interested Parties .......................................................................................................4
          2. Notice of Intent to Participate ...................................................................................4
          3. Waiver of Participation .............................................................................................5
          4. Substantive Responses ..............................................................................................5
       C. Preliminary Results in Sunset Review ...........................................................................6
          1. Likelihood of Continuation or Recurrence of Dumping ...........................................7
              a. Affirmative Likelihood .......................................................................................8
              b. Negative Likelihood............................................................................................8
          2. Magnitude of the Dumping Margin Likely to Prevail ..............................................9
       D. Final Results in Sunset Review....................................................................................10
          1. Verification .............................................................................................................11
          2. Case Briefs and Hearing .........................................................................................11
          3. Expedited Sunset Review .......................................................................................11

III.   COMPLETION OF SUNSET REVIEWS
       A. Continuation / Revocation / Termination FR...............................................................13
          1. Gap Period in Revocations of Orders .....................................................................13
       B. U.S. Customs and Border Protection Instructions .......................................................14

IV.    AD SUNSET REVIEWS TIMELINE ...............................................................................14

Statute and Regulations:
   The Tariff Act
   Section 751(c) - administrative review of determinations: five-year review
       Section 751(d) - administrative review of determinations: revocation of order
       Section 752 - special rules for section 751(b) and 751(c) reviews
       Section 782 - conduct of investigations and reviews
   Department Regulations
       Section 351.218 - sunset reviews under section 751(c) of the Act
       Section 351.221(c)(5) - review procedures; sunset review
       Section 351.222(i) - revocation or termination based on sunset review
       Statement of Administrative Action
       Section C.9.b. - duration and review of antidumping and countervailing duty orders; five-
           year reviews
   WTO Antidumping Agreement
       Article 11.3 - duration and review of anti-dumping duties
I. INTRODUCTION

The Uruguay Round Agreements Act ("URAA") revised the Tariff Act of 1930, as amended
("Act"), by requiring that antidumping ("AD") and countervailing duty ("CVD") orders be
revoked, and suspended investigations be terminated, after five years, unless revocation or
termination would be likely to lead to a continuation or recurrence of (1) dumping or a
countervailable subsidy, and (2) material injury to the domestic industry. See Section 751(c) of
the Act. Section 751(c)(1) requires the Department and the ITC to conduct a review no later than
five years after the issuance of an AD or CVD order, the suspension of an investigation, or a
prior five-year review. Accordingly, unlike other reviews, the five-year reviews are conducted
on an order-wide, rather than a company-specific, basis. The URAA assigns to the Department
the responsibility of determining whether revocation of an AD or CVD order, or termination of a
suspended investigation, would be likely to lead to a continuation or recurrence of dumping or a
countervailable subsidy; the ITC is responsible for determining whether revocation or
termination would be likely lead to continued or recurring material injury to the domestic
industry.1 These five year reviews are commonly referred to as “sunset” reviews. If the
determinations of both the Department and the ITC are affirmative, the order (or suspended
investigation) will continue (i.e., remain in place). If either the Department’s determination or
the ITC’s determination is negative, the order will be revoked (or the suspended investigation
will be terminated).

Sunset reviews are conducted pursuant to the provisions of the Act, including sections 751(c),
751(d), 752, 777 and 782, and the Department’s regulations at 19 CFR Part 351, primarily
section 351.218. See Procedures for Conducting Five-Year ("Sunset") Reviews of Antidumping
and Countervailing Duty Orders, 70 FR 62061 (October 28, 2005) (Final rule); Policy Bulletin
98.3; and Procedures for Conducting Five-year ("Sunset") Reviews of Antidumping and
Countervailing Duty Orders, 63 FR 13516 (March 20, 1998) (Interim final rules; request for
comments). These policies and procedures are intended to complement the applicable statutory
and regulatory provisions by providing guidance on methodological or analytical issues not
explicitly addressed by the statute and regulations. In developing these policies, the Department
has drawn on the guidance provided by the legislative history accompanying the URAA,
specifically the Statement of Administrative Action ("SAA"), H.R. Doc. No. 103-316, vol. 1
(1994), the House Report, H.R. Rep. No. 103-826, pt. 1 (1994), and the Senate Report, S. Rep.
No. 103-412 (1994).

As interested parties are not required to formally request a sunset review, section 751(c)(1)
essentially provides for the automatic initiation of sunset reviews. See SAA at Section C.9.b.(1).
“Automatic initiation will avoid placing an unnecessary burden on the domestic industry and
promote efficiency of administration by: (1) combining into a single action notification to all
parties of the upcoming five-year review; and (2) providing an effective means of evaluating the
level of interest of all affected parties and the need for a full-fledged review.” Id. The

1
  The status of the ITC sunset reviews can be found on the ITC website, in the “Antidumping and countervailing
investigations” section at http://www.usitc.gov/trade_remedy/731_ad_701_cvd/investigations/active/index.htm.

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Department’s Lotus Notes AD/CVD Case Management database has a “Sunset Cases” folder
that indicates past and upcoming initiation dates of sunset reviews.

While AD and CVD sunset reviews are usually conducted by the office responsible for the order,
if there are multiple AD orders for subject merchandise, the Department assigns one office to
conduct those AD sunset reviews jointly.2 Suspended investigation sunset reviews are conducted
by the Bilateral Agreements Unit in the Office of Policy. In addition, the Department has
designated a team of “sunset coordinators” who report to the Senior Advisor (Deputy)
Operations to the Deputy Assistant Secretary (“DAS”) of AD/CVD Operations for Import
Administration. The sunset coordinators are responsible for overseeing the progress of the
sunset reviews, acting as a general point of contact for outside parties, contacting the ITC Office
of Investigations as required for each sunset review, assisting analysts with any questions in the
course of conducting sunset reviews, ensuring consistency in determinations, and reviewing
initiation and other Federal Register notices. The name of the assigned sunset coordinator for a
particular sunset review can be found in the “Sunset Cases” folder on the Department’s Lotus
Notes AD/CVD Case Management database.

The Department’s Operations Handbook on the shared drive at J:\Operations Handbook\Sunset
Reviews contains examples of Federal Register notices, memorandums, letters, schedules and
other documents that may be of assistance to the analysts. It should be kept in mind that these
documents are not necessarily the most updated examples, and analysts are encouraged to
conduct research or speak with their program manager or the sunset coordinator for more recent
examples. In addition, a sunset review timeline chart is available at the end of this chapter, as a
quick reference guide for analysts; this timeline chart is not meant to replace the Department’s
regulations, but merely to assist the analysts in understanding the basic timeline and their general
responsibilities in a sunset review.

II.      CONDUCT OF SUNSET REVIEWS

A. Initiation of Sunset Review

The URAA requires that the Department initiate a sunset review of each order or suspended
investigation not later than 30 days before the fifth anniversary of publication of the order or
suspension agreement in the Federal Register. See Section 751(c)(2) of the Act; section
351.218(c) of the Department’s regulations.3 In practice, the Department attempts to publish
notification of sunset reviews on the first business day of the month in which the five year

2
  For multiple orders issued on the same merchandise but in different months, the Department will jointly initiate on
all orders for the merchandise using the earliest initiation date for the orders. See, e.g., Initiation of Five-year
(“Sunset”) Reviews, 73 FR 31974 (June 5, 2008)(polyvinyl alcohol follows June anniversary month for Japan, and
not September anniversary month for the People’s Republic of China, and the Republic of Korea).
3
  For non-WTO member countries, any time during which imports of subject merchandise from those countries was
prohibited is not counted toward the computation of the five-year period. See Section 751(c)(7) of the Act.

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anniversary falls. After the first sunset review, subsequent sunset reviews of the order or
suspended investigation must be identified further in the Federal Register by the segment of
review (i.e., the tenth year review is the “second sunset review,” the fifteenth year review is the
“third sunset review,” etc.).

In addition to providing notification of initiation of sunset reviews, the Department has
implemented a policy of providing a one month advance notification of sunset reviews in the
Federal Register, informing interested parties of sunset reviews scheduled for initiation in the
month to follow. While such notification is not required by statute, the Department publishes
such advance notification as a service to the international trading community. Another service is
noted in Federal Register initiation notice, wherein the Department states that: “As a courtesy,
we are making information related to Sunset proceedings, including copies of the pertinent
statute and Department regulations, the Department's schedule for Sunset Reviews, a listing of
past revocations and continuations, and current service lists, available to the public on the
Department's sunset Internet Web site at the following address: http://ia.ita.doc.gov/sunset/.”

The Customs Unit of Import Administration is responsible for drafting both the initiation notice
and advance notification of initiation for sunset reviews, and advancing the documents through
concurrence and publication. These Federal Register notices are signed by the DAS of AD/CVD
Operations for Import Administration.

B. Participation in Sunset Review

1. Interested Parties

The Federal Register initiation notice requests interested parties to contact the Department in
writing, within ten days of publication of the initiation notice, if they seek recognition as an
interested party to the proceeding. Pursuant to section 351.103(c) of the Department’s
regulations, the Department compiles a sunset review service list consisting of those interested
parties who contact the Department, and makes this service list available on the Department’s
website at: http://ia.ita.doc.gov/apo/apo-svc-lists.html.

2. Notice of Intent to Participate

The Federal Register initiation notice requests domestic interested parties (see sections 771(9)(C)
though (G) of the Act; section 351.102(b) of the Department’s regulations), to file a notice of
intent to participate with the Department no later than fifteen days after the date of publication of
the initiation notice.4 The domestic interested party’s notice of intent to participate must include
certain information, as set forth in section 351.218(d)(1)(ii) of the Department’s regulations. A
notice of appearance is not considered the same as a notice of intent to participate; the domestic
interested party must properly file a notice of intent to participate to take part in the sunset

4
    A U.S. importer is a respondent interested party, not a domestic interested party.
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review. Any domestic party that fails to file a notice of intent to participate is considered not
willing to participate and, thereafter, the Department will not accept any filings from such parties
during the sunset review. See section 351.218(d)(1)(iii)(A) of the Department’s regulations. If
no domestic party timely files a notice of intent to participate, the Department will issue a final
determination revoking the order (or terminating the suspended investigation) no later than 90
days after the initiation notice. See section 351.218(d)(1)(iii)(B) of the Department’s
regulations.

The sunset coordinator is responsible for notifying the ITC Office of Investigations no later than
twenty days after publication of the initiation notice of the status of domestic interest and notice
of intent to participate. See section 351.218(d)(1)(iii)(B)(2) of the Department’s regulations.
The notification letter is signed by the office director.

3. Waiver of Participation

Respondent interested parties are not required to file a notice of intent to participate. See section
351.218(d)(1)(i) of the Department’s regulations. However, respondent interested parties may
waive participation in a sunset review no later than 30 days after the date of publication of the
initiation notice; the Department will not accept any filings from such parties during the sunset
review. See section 351.218(d)(2) of the Department’s regulations. The waiver must include a
statement that the respondent interested party is likely to dump (or benefit from a countervailable
subsidy), if the order is revoked or the investigation is terminated. See section 351.218(d)(2)(ii)
of the Department’s regulations. Where a foreign government waives participation in a CVD
sunset review, the Department will conclude the respondent interested parties submitted
inadequate responses (see also “Substantive Responses” section, below) as a result of such
waiver and conduct an expedited sunset review. See section 351.218(d)(2)(iv) of the
Department’s regulations.

4. Substantive Responses

If the Department receives proper notice of intent to participate, all parties wishing to participate
in the sunset review must file a substantive response no later than 30 days after the date of
publication of the initiation notice. See section 351.218(d)(3) of the Department’s regulations.
Substantive responses must include certain information, as set forth in sections 351.218(d)(3)(ii)
through (vi) of the Department’s regulations. Analysts should note that certain informational
requirements differ depending on the interested party. Interested parties may submit rebuttal
comments to substantive responses within five days after the submission of the other party’s
substantive response. See section 351.28(d)(4) of the Department’s regulations.

The Department must make a determination regarding the adequacy of the substantive
response(s) submitted by domestic and respondent interested parties. See section 351.218(e) of
the Department’s regulations. For domestic interested parties, the Department will consider it an
adequate response if at least one domestic interested party submits a complete substantive
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response. See section 351.218(e)(1)(i) of the Department’s regulations. For respondent
interested parties, the Department will consider it an adequate response if the respondent
interested parties submit complete substantive responses, and account on average for more than
50 percent by volume (or value, if appropriate), of the total exports of subject merchandise to the
United States during the sunset review period.5 See section 351.218(e)(1)(ii) of the
Department’s regulations. Where there are no exports from the country, the Department has
usually found the substantive response of respondent interested parties inadequate. See, e.g.,
Solid Agricultural Grade Ammonium Nitrate from Ukraine; Final Results of the Expedited
Sunset Review of the Antidumping Duty Order, 71 FR 70508 (December 5, 2006) and the
accompanying Issues and Decision Memorandum.

Procedurally, the Department issues its determination of the adequacy of the substantive
response(s) in the form of an adequacy memo to the file. Of late, the adequacy memo has no
longer been required in cases where there are no substantive responses from respondent
interested parties. If the substantive response(s) are adequate, the Department shall conduct a
full sunset review. See section 351.218(e)(2) of the Department’s regulations. If the domestic
interested party substantive response is inadequate, the Department will issue a final
determination revoking the order (or terminating the suspended investigation) no later than 90
days after the initiation notice. See section 351.218(e)(1)(i)(C)(3) of the Department’s
regulations. If the respondent interested party substantive response is inadequate, the
Department will conduct an expedited sunset review, and issue a final determination no later
than 120 days after the initiation notice. See section 351.218(e)(1)(ii)(C)(2) of the Department’s
regulations.

The sunset coordinator is responsible for notifying the ITC Office of Investigations of the
adequacy determinations on the substantive response(s). In the event of inadequate domestic
interested party substantive response, such notification is due no later than forty days after
publication of the initiation notice. See section 351.218(e)(1)(i)(C)(2) of the Department’s
regulations. In the event of inadequate respondent interested party substantive response, such
notification is due no later than fifty days after publication of the initiation notice. See section
351.218(e)(1)(i)(C)(2) of the Department’s regulations. The notification letter is signed by the
office director.

C. Preliminary Results in Sunset Review

If both domestic and respondent interested parties submit adequate substantive response, the
Department shall conduct a full sunset review and normally issue its preliminary results no later

5
  Imports by any companies that have been revoked or excluded from an order must be excluded from the statistics
before making an adequacy determination. See, e.g., Canned Pineapple Fruit from Thailand: Preliminary Results of
the Full Sunset Review of the Antidumping Duty Order, 71 FR 62994 (October 27, 2006) and accompanying Issues
and Decision Memorandum, at 2 (referencing July 12, 2006, memorandum in the sunset review titled “Correction to
the Adequacy Calculation in the Antidumping Duty Sunset Review of Canned Pineapple Fruit from Thailand”).
                                                       6
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than 110 days after that date of publication of the initiation notice. See section 351.218(f)(1) of
the Department’s regulations. Preliminary results are issued only for full sunset reviews;
expedited sunset reviews bypass preliminary results for the final results (see “Expedited Sunset
Review” section, below). For the preliminary results, the analyst issues: 1) a Federal Register
notice (signed by the Assistant Secretary (“AS”) for Import Administration); and 2) an issues and
decision memorandum (from either the DAS of AD/CVD Operations for Import Administration
(for orders) or the DAS for Policy and Negotiations (for suspended investigations) to the AS for
Import Administration) (“I&D Memo”). The I&D Memo analyzes: 1) the likelihood of
continuation or recurrence of dumping; 2) the magnitude of the dumping margin likely to
prevail; and 3) any other issues raised by interested parties in their substantive responses and
rebuttals. The Department generally includes ITC Trade DataWeb statistics on subject
merchandise for the five year sunset review period.

1. Likelihood of Continuation or Recurrence of Dumping

In determining whether revocation of an order (or termination of a suspended investigation)
would likely lead to continuation or recurrence of dumping, the Department considers the
margins established in the investigation and/or reviews conducted during the sunset review
period6, as well as the volume of imports for the periods before and after issuance of the order
(or acceptance of the suspension agreement). See Section 752(c)(1) of the Act. The Department
may also consider other economic factors if interested parties can demonstrate good cause. See
Section 752(c)(2) of the Act. Good cause arguments must be submitted as part of interested
parties’ substantive responses, and may not be submitted later. See, e.g., Furfuryl Alcohol from
Thailand; Final Results of the Second Sunset Review of the Antidumping Duty Order and
Revocation of the Order, 72 FR 9729 (March 5, 2007) and accompanying Issues and Decision
Memorandum at Comment 2 (rejecting additional good cause arguments submitted after the
substantive response deadline as untimely filed)(“Furfuryl Alcohol from Thailand”).

Past sunset reviews where the Department has accepted arguments for good cause include:
Preliminary Results of Sunset Review of Suspended Antidumping Duty Investigation on
Uranium From the Russian Federation, 71 FR 16560 (April 3, 2006) and the accompanying
Issues and Decision Memorandum; Corrosion-Resistant Carbon Steel Flat Products From
Canada; Final Results of Full Sunset Review of Antidumping Duty Order, 65 FR 47379 (August
2, 2000); Uranium From Uzbekistan; Preliminary Results of Sunset Review of Suspended
Antidumping Duty Investigation, 65 FR 10471 (February 28, 2000) and the accompanying Issues
and Decision Memorandum; and Preliminary Results of Full Sunset Review: Brass Sheet and
Strip From the Netherlands, 64 FR 46637 (August 26, 1999). Past sunset reviews where the
Department found good cause was not demonstrated include: Furfuryl Alcohol from Thailand;
Oil Country Tubular Goods from Mexico; Preliminary Results of the Sunset Review of

6
  This includes zero or de minimis margins, which do not by themselves require that the Department determine that
a continuation or recurrence is not likely. See Section 752(c)(4)(A) of the Act.

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Antidumping Duty Order, 71 FR 77372 (December 26, 2006); Canned Pineapple Fruit from
Thailand: Preliminary Results of the Full Sunset Review of the Antidumping Duty Order, 71 FR
62994 (October 27, 3006); and Fresh and Chilled Atlantic Salmon From Norway: Final Results
of the Full Sunset Review of Antidumping Duty Order, 70 FR 77378 (December 30, 2005) and
the accompanying Issues and Decision Memorandum.

For purposes of determining whether more recently calculated rates are probative of future
behavior, the Department considers the volume of imports. When comparing imports of subject
merchandise for the five-year sunset review period, the Department recently decided that the
practice should be to look at the full year prior to initiation of the investigation (as opposed to
prior to issuance of the order). See, e.g., Stainless Steel Bar from Germany; Final Results of the
Sunset Review of the Antidumping Duty Order, 72 FR 56985 (October 5, 2007) and
accompanying Issues and Decision Memorandum at 4-5; Furfuryl Alcohol from Thailand;
Preliminary Results of the Second Sunset Review of the Antidumping Duty Order, 71 FR 62583
(October 26, 2006) and accompanying Issues and Decision Memorandum at 5; Certain Large
Diameter Carbon and Alloy Seamless Standard, Line and Pressure Pipe from Japan and Mexico;
Final Results of the Expedited Sunset Reviews of the Antidumping Duty Orders, 70 FR 53159
(September 7, 2005) and accompanying Issues and Decision Memorandum at 6-7. The rationale
behind this is that initiation of an investigation may immediately cause a dampening effect on
trade, which could skew the comparison.

a. Affirmative Likelihood

Generally, the Department finds the following scenarios as highly probative of a likelihood of
continued or recurred dumping: 1) dumping continued at any level above de minimis after the
issuance of the order (or suspension agreement); 2) imports of the subject merchandise ceased
after issuance of the order (or suspension agreement); or 3) dumping was eliminated after the
issuance of the order (or suspension agreement), and import volumes for the subject merchandise
declined. See SAA at 889-890.

If companies continue to dump with the discipline of an order or suspension agreement in place,
it is reasonable to consider that dumping would continue if the discipline were removed. If
imports cease after issuance of an order or suspension agreement, it is reasonable to consider that
exporters had to dump to sell at pre-order/suspension agreement volumes, and would have to
resume so to re-enter the U.S. market. Similarly, if dumping is eliminated and imports decline
after issuance of an order or suspension agreement, it is reasonable to consider that this was a
result of the order or suspension agreement and revocation would result in the continuation or
recurrence of dumping. Of course, while these scenarios are highly probative of a likelihood of
continued or recurred dumping, they are not absolute and interested parties may provide
evidence to the record otherwise. In addition, likelihood determinations are made on an order-
wide basis; if one company is found likely to continue or recur dumping, the likelihood
determination is affirmative.

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b. Negative Likelihood

Generally, the Department finds that declining (or no) dumping margins accompanied by steady
or increasing imports as highly probative of no likelihood of continued or recurred dumping. See
SAA at 889-890. Such a scenario may indicate that foreign companies do not have to dump to
maintain market share in the United States and that dumping is less likely to continue or recur if
the order or suspension agreement were revoked. But see Folding Gift Boxes from the People’s
Republic of China: Final Results of the Expedited Sunset Review of the Antidumping Duty
Order, 72 FR 16765 (April 5, 2007) and the accompanying Issues and Decision Memorandum
(despite zero margin and significant increase in imports, the Department found a likelihood of
continued or recurred dumping; there was no participation from any respondent interested party
and no company-specific data). It should be noted that declining margins, by themselves, are
typically not enough for a conclusion on no likelihood of continued or recurred dumping, as the
existence of margins at any level above de minimis over the five year review period indicate
there is still a likelihood of continued or recurred dumping.

2. Magnitude of the Dumping Margin Likely to Prevail

In determining the magnitude of the margin of dumping that is likely to prevail if the order were
revoked, the Department generally selects the margin(s) from the final determination in the
original investigation, because that is the only calculated rate that reflects the behavior of
exporters without the discipline of an order or suspension agreement in place. See SAA at 890.
In certain instances, the Department may use the margin(s) from the preliminary determination
of the original investigation (e.g., in suspended investigations where a final determination was
not issued because continuation was not requested).

However, the Department may use a more recently calculated margin, where appropriate. See
SAA at 890-91. For example, declining (or no) dumping margins accompanied by steady or
increasing imports may lead to the conclusion that exporters are likely to continue dumping at
the lower rates found in a more recent review.7 Past sunset reviews that used a more recently
calculated lower margin include: Stainless Steel Bar from Germany; Preliminary Results of the
Sunset Review of Antidumping Duty Order, 72 FR 29970 (May 30, 2007) and accompanying
Issues and Decision Memorandum at 7-8, as corrected in Stainless Steel Bar from Germany;
Preliminary Results of the Sunset Review of Antidumping Duty Order, 72 FR 31660 (June 7,
2007); Ball Bearings and Parts Thereof from Japan and Singapore; Five-year Sunset Reviews of
Antidumping Duty Orders; Final Results, 71 FR 26321 (May 4, 2006) and the accompanying
Issues and Decision Memorandum; and Final Results of Expedited Sunset Reviews: Antifriction
Bearings From Japan, 64 FR 60275 (November 4, 1999). As another example, the Department

7
 While the Department generally finds declining (or no) dumping margins accompanied by steady or increasing
imports as highly probative of no likelihood of continued or recurred dumping (see “Negative Likelihood” section,
above), such evidence may lead to this alternate conclusion.

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may use a rate from a more recent review where the dumping margin increased, as more
representative of a company’s behavior in the absence of an order (e.g., where a company
increases dumping to maintain or increase market share, despite the order). The Department may
also use an increased margin that was a result of the application of facts available (or best
information available, the predecessor to facts available). Past sunset reviews that used a more
recently calculated higher margin include: Final Results of Expedited Sunset Reviews: Certain
Iron Construction Castings From Brazil, Canada and The People's Republic of China, 64 FR
30310 (June 7, 1999); Final Results of Expedited Sunset Review: Natural Bristle Paintbrushes
and Brush Heads From the People's Republic of China, 64 FR 25011 (May 10, 1999); Final
Results of Expedited Sunset Review: Potassium Permanganate from the People's Republic of
China, 64 FR 169070 (April 7, 1999); and Final Results of Expedited Sunset Review: Potassium
Permanganate from Spain, 64 FR 16904 (April 7, 1999).

The issue of duty absorption may arise in a limited number of sunset reviews, if it was an issue in
an administrative review during the sunset review period. Essentially, duty absorption where
antidumping duties may be absorbed by a foreign producer or exporter subject to an order so that
the price of the subject merchandise sold in the United States through an affiliated importer
remains unchanged. Evidence of duty absorption is a strong indicator that the margins calculated
by the Department in reviews may not be indicative of the margins that would exist in the
absence of an order. See SAA at 885. As a result, the Department normally will increase the
margin likely to prevail by the amount of duty absorption on those sales for which the
Department found duty absorption.8

Pursuant to section 752(c)(3) of the Act, the Department provides to the ITC the magnitude of
the margin of dumping that is likely to prevail if the order is revoked or the suspended
investigation is terminated. This notification is essentially achieved via the Federal Register
notice and I&D Memo (which should include a history of reviews and rulings, a list of any
companies excluded from the order based on zero or de minimis margins, or subsequently
revoked from the order and an all-others or country-wide rate).

D. Final Results in Sunset Review

In a full sunset review, the Department is to make its final determination within 240 days after
the review is initiated. See section 351.218(f)(3)(i) of the Department’s regulations and section
751(c)(5)(A) of the Act. This date may be extended by no more than an additional 90 days if the
Department deems that the review is extraordinarily complicated. See section 351.218(f)(3)(ii)
of the Department’s regulations and section 751(c)(5)(B) of the Act.

8
  It should be noted that the U.S. Court of Appeals for the Federal Circuit affirmed the U.S. Court of International
Trade’s finding that the Department does not have the authority to conduct duty absorption inquiries with respect to
transition orders, i.e., orders issued before January 1, 1995. See FAG Italia S.p.A. v. United States, 291 F.3d 806,
819 (2002). In addition, we are not aware of any more recent administrative reviews, as of the revised date of this
AD Manual, which involved duty absorption.
                                                         10
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For the final results of a full sunset review, the analyst issues: 1) a Federal Register notice
(signed by the AS for Import Administration); and 2) an I&D Memo (from either the DAS of
AD/CVD Operations for Import Administration (for orders) or the DAS for Policy and
Negotiations (for suspended investigations) to the AS for Import Administration) analyzing any
issues raised in the case and rebuttal briefs, and on verification, if applicable, and making a final
analysis of the likelihood of continuation or recurrence of dumping and the magnitude of the
dumping margin likely to prevail. A template cover letter to the ITC is available on the shared
drive at J:\Operations Handbook\Sunset Reviews, titled “ITC letter.announcing.final.results”.

1. Verification

The Department normally conducts verification only in a full sunset review where the
preliminary results are not based on rates from the investigation or subsequent reviews, and only
where needed (i.e., where the preliminary results found no likelihood of continuation or
recurrence of dumping). See section 351.218(f)(2)(i) of the Department’s regulations and
section 782(i)(2) of the Act. However, the Department has conducted verification in expedited
sunset reviews in the past. See Oil Country Tubular Goods from Italy: Final Results of Five-year
(Sunset) Review and Revocation of the Countervailing Duty Order, 71 FR 77383, 77384
(December 26, 2006), and the accompanying Issues and Decision Memorandum. Verification is
normally conducted immediately after the preliminary results, around 120 days after the date of
publication of the initiation notice. See section 351.218(f)(2)(ii) of the Department’s regulations.
Although verifications are not commonly conducted in every full sunset review, there are
reviews that warrant verification. See Furfuryl Alcohol from Thailand; Final Results of the
Second Sunset Review of the Antidumping Duty Order and Revocation of the Order, 72 FR 9729
(March 5, 2007) and the accompanying Issues and Decision Memorandum; Final Results of Full
Sunset Review and Termination of Suspended Investigation: Cotton Shop Towels From Peru, 64
FR 66894 (November 30, 1999); Final Results of Full Sunset Review: Sugar and Syrups From
Canada, 64 FR 48362 (September 3, 1999).

2. Case Briefs and Hearing

Interested parties may submit a case brief for the final results of the sunset review by a date
specified by the Department. See section 351.309(C)(1)(iii) of the Department’s regulations.
Rebuttal briefs may be submitted by parties within five days after the case brief, unless otherwise
specified by the Department. See section 351.309(d)(1) of the Department’s regulations. In
addition, interested parties may request a hearing on the issues raised in the briefs within 30 days
after the publication of the preliminary results of review, unless otherwise specified by the
Department. See section 351.310(c) of the Department’s regulations. It should be noted that
interested parties also have a right to submit briefs and to a hearing in an expedited sunset
review, as clarified in the Procedures for Conducting Five-Year ("Sunset") Reviews of
Antidumping and Countervailing Duty Orders, 70 FR 62061, 62063 (October 28, 2005).

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3. Expedited Sunset Review

As noted above, the Department conducts an expedited sunset review where there is an
inadequate substantive response from respondent interested parties. In an expedited sunset
review, the Department is to make its final determination within 120 days after the review is
initiated. See section 351.218(e)(1)(ii)(C)(2) of the Department’s regulations. This date may be
extended by no more than an additional 90 days if the Department deems that the review is
extraordinarily complicated, in accordance with section 751(c)(5)(B) of the Act. See, e.g., Oil
Country Tubular Goods from Italy: Extension of Time Limit for Final Results of Expedited Five-
year (Sunset) Review of Countervailing Duty Order, 71 FR 57922 (October 2, 2006). As noted
above, verification, acceptance of case and rebuttal briefs, and a hearing may be conducted in an
expedited sunset review.

For the final results of an expedited sunset review, the analyst issues: 1) a Federal Register
notice (signed by the AS for Import Administration); and 2) an I&D Memo (from either the DAS
of AD/CVD Operations for Import Administration (for orders) or the DAS for Policy and
Negotiations (for suspended investigations) to the AS for Import Administration). The I&D
Memo analyzes: 1) the likelihood of continuation or recurrence of dumping; 2) the magnitude of
the dumping margin likely to prevail; and 3) any other issues raised by interested parties in their
case and rebuttal briefs, and on verification, if applicable. A template cover letter to the ITC is
available on the shared drive at J:\Operations Handbook\Sunset Reviews, titled “ITC
letter.announcing.final.results”.

III.   COMPLETION OF SUNSET REVIEWS

If the Department makes a final negative determination, either in a full or expedited sunset
review, that revocation of an order, or termination of a suspended investigation, would not be
likely to lead to a continuation or recurrence of dumping or subsidies, the Department includes
the revocation or termination notice (as applicable) as part of its final determination in the
Federal Register and notifies the ITC of the results. See, e.g., Cut-to-Length Carbon Steel Plate
from the United Kingdom: Final Results of Full Sunset Review, 71 FR 58587 (October 4, 2006).

If the Department makes a final affirmative determination, either in a full or expedited sunset
review, that revocation of an order, or termination of a suspended investigation, would be likely
to lead to a continuation or recurrence of dumping or subsidies, after the Department issues this
final determination in the Federal Register, it must wait for the ITC to make its own
determination, either in a full or expedited sunset review, on whether revocation or termination
would likely lead to continued or recurring material injury to the domestic industry. See Import
Administration Policy Bulletin 98.2 63 FR 18871 (February 23, 1998).

The Department has seven days after the ITC publishes its injury determination in the Federal
Register to thereafter issue the revocation, continuation, or termination notice (as applicable) in
the Federal Register. See section 351.218(f)(4) of the Department’s regulations. While this may
                                                  12
AD Manual                                                                                 Chapter 25

appear to provide too limited a period of time for the Department to draft the notice and advance
it through the concurrence chain for signature, the ITC releases its vote on the sunset review the
day of voting, on the main page of its website at http://www.usitc.gov/. As the ITC vote occurs
well in advance of the actual publication of the ITC decision in the Federal Register, this
provides the Department with enough time to draft the revocation, continuation, or termination
notice (as applicable) and have it ready for issuance within seven days after the ITC publishes its
determination.

A. Continuation / Revocation / Termination FR

Where both the Department finds that revocation of an order (or termination of a suspended
investigation) would likely lead to a continuance or recurrence of dumping or a countervailable
subsidy, and the ITC finds that revocation or termination would likely lead to a continuance or
recurrence of material injury to the domestic industry, the order or suspended investigation will
continue. As noted above, the Department has seven days after the ITC publishes its injury
determination in the Federal Register to thereafter issue the continuation notice in the Federal
Register. The effective continuation date of an order is the month of publication of the
continuation notice in the Federal Register (e.g., a continuation notice signed in January but
published in February is effective as of February). The continuation FR also provides the
anticipated initiation date of the next sunset review, which is five years minus one month from
the publication of the continuation notice (e.g., if a continuation notice publishes in January
2010, the next sunset review will be initiated in December 2014). See section 351.218(c)(2) of
the Department’s regulations.

As noted above in the “Notice of Intent to Participate” section, the Department will revoke an
order (or terminate a suspended investigation) in the event of no domestic interest. See section
351.218(d)(1)(iii)(B)(3) of the Department’s regulations. As noted above in the “Substantive
Response” section, the Department will also revoke an order (or terminate a suspended
investigation) in the event of an inadequate domestic response. See section
351.218(e)(1)(i)(C)(3) of the Department’s regulations. In both of these instances, the ITC will
terminate its review and there is no ITC vote on injury. The Department has no later than 90
days after the initiation notice to issue its final determination in the Federal Register revoking the
order (or terminating the suspended investigation). The Department would also revoke an order
(or terminate a suspended investigation) where it finds no likelihood of continued or recurred
dumping or subsidies. The final scenario where the Department would issue a revocation or
termination notice would be in either a full or expedited sunset review, where the ITC finds no
likelihood of a continuance or recurrence of material injury to the domestic industry. In this
instance, the Department has seven days after the ITC publishes its injury determination in the
Federal Register to thereafter issue the revocation/termination notice in the Federal Register.
The effective revocation date of an order (or suspended investigation) is the fifth anniversary of
the date of publication of the order, suspended investigation, or continuation notice. See section
351.222(i)(2)(i) of the Department’s regulations.

                                                 13
AD Manual                                                                               Chapter 25

1. Gap Period in Revocations of Orders

Because the effective revocation date of an order is the fifth anniversary of the date of
publication of the order (or continuation notice), this leaves an uncovered “gap” period between
the last full administrative review and the date of revocation. For example, the continuation
notice for brake rotors from the People’s Republic of China (“PRC”) published on August 14,
2002. See Continuation of Antidumping Duty Order: Brake Rotors from the People's Republic
of China, 67 FR 52933 (August 14, 2002). Accordingly, the effective revocation date for the
brake rotors from the PRC sunset review is August 14, 2007. See Brake Rotors from the
People’s Republic of China: Revocation of Antidumping Duty Order Pursuant to Second Five-
Year (Sunset) Reviews, 73 FR 36039 (June 25, 2008). However, the last full administrative
review of brake rotors from the PRC covered only the period 04/01/06 through 03/31/07. See
Initiation of Antidumping and Countervailing Duty Administrative Review and Request for
Revocation in Part, 72 FR 29968 (May 30, 2007). As a result, this gap period between the last
full administrative review and the date of revocation (04/01/07 through 08/12/07) is considered
the period of review for the final administrative review of the order. Of course, if no parties
request an administrative review, then automatic liquidation instructions will be issued for the
gap period.

B. U.S. Customs and Border Protection Instructions

In sunset reviews, custom instructions are only issued to the CBP where an order is revoked or a
suspension agreement is terminated. Boilerplate instructions, titled “Sunset Revocation of
Antidumping/Countervailing Duty Orders,” are available on the Department’s website at
http://ia.ita.doc.gov/download/custboil.htm. Procedurally, the Department has decided that these
instructions are to be issued no earlier than day 15 after publication of the revocation or
termination notice in the Federal Register. As noted above, the effective revocation date is the
fifth anniversary of the date of publication of the order, suspended investigation, or continuation
notice.

In addition to the customs instructions, the customs module must be updated with the effective
revocation date; this must be done the day before publication of the revocation or termination
notice in the Federal Register. Analysts can preview the notices that will be published in the
Federal Register a day in advance on The National Archives website at
http://www.archives.gov/federal-register/index.html (click on “Tomorrow’s Federal Register”
under the header “Government Actions”).

AD SUNSET REVIEWS TIMELINE (see 19 C.F.R. 351.218):

CHART #1 (Full Sunset Review)
                                                                             Responsible
Date:   Action:                                      Regulation:             Party/Parties:
 -30    Advance Notification of Initiation FR                                S. Forbes drafts;
                                                14
AD Manual                                                                                Chapter 25

                                                                             coordinator reviews
                                                        351.218(c)           S. Forbes drafts;
  0
       Initiation FR publishes (1st of month)                                coordinator reviews
                                                        351.218(d)(1)(i)
 15    Notice of Intent to Participate from domestic
       interested parties due
       *** IF NO DOMESTIC INTEREST, GO TO
       CHART #2, otherwise see below ***

                                                                             Inform coordinator of
 20
                                                                             the status; coordinator
       Notification to ITC re: domestic interest                             drafts notification letter
       Statement of Waiver from respondent              351.218(d)(2)(i)
 30
       interested parties (if opted) due
       Substantive Response from all interested         351.218(d)(3)(i)     Analyst drafts
       parties due                                      through              Adequacy Memo by
 30                                                     351.218(d)(3)(vi)    day 40 re substantive
                                                                             responses (see factors
                                                                             listed in regs)
       *** IF DOMESTIC PARTY RESPONSE
       NONE/INADEQUATE, GO TO CHART #3,
       otherwise see below ***
       *** IF RESPONDENT RESPONSE
       NONE/INADEQUATE, GO TO CHART #4,
       otherwise see below ***
 35    Rebuttal to substantive response due             351.218(d)(4)
                                                                             Inform coordinator of
 50    Notification to ITC re: adequacy of                                   the status; coordinator
       substantive response                                                  drafts notification letter
                                                        351.218(f)(1)        Analyst drafts FR and
 110
       Preliminary Results FR                                                I&D Memo
                                                        351.218(f)(2)(ii)
 120
       Verification (if needed)                                              Analyst conducts
                                                        351.309(c)(1)(iii)
 tbd
       Case briefs due
                                                        351.309(d)(1)
 tbd
       Rebuttal briefs due
                                                        351.310(d)(1)
 tbd
       Hearing (if requested)
       Final Results due                                351.218(f)(3)(i)     Analyst drafts FR and
 240                                                                         I&D Memo;
                                                                             coordinator notifies
                                                                             ITC.
       IF EXTENDED: Final Results due                   351.218(f)(3)(ii)
                                                                             Analyst drafts FR and
 330                                                                         I&D Memo;
                                                                             coordinator notifies
                                                                             ITC.



                                                   15
AD Manual                                                                                          Chapter 25




        ITC announces decision
  0     ITC publishes decision in FR
        Revocation/Continuation FR due                      351.218(f)(4)              Analyst drafts FR (and
                                                                                       for Revocations, also
  7
                                                                                       drafts CBP instructions
                                                                                       and updates module)


CHART #2 (no domestic interest)(Revocation):
                                                            351.218(d)(1)(iii)(B)(2)   Inform coordinator of
 20                                                                                    the status; coordinator
        Notification to ITC re: no domestic interest                                   drafts notification letter
        Final FR Revoking Order due                         351.218(d)(1)(iii)(B)(3)   Analyst drafts FR and
                                                                                       CBP revocation
 90
                                                                                       instructions, and
                                                                                       updates module
        If EXTENDED (highly unusual): Final Results         751(c)(5)(B) of the        Analyst drafts FR and
        due no later than this date                         Tariff Act of 1930         CBP revocation
 180
                                                                                       instructions, and
                                                                                       updates module


CHART #3 (no/inadequate domestic substantive response)(Revocation):
                                                  351.218(e)(1)(i)(C)(2)               Inform coordinator of
 40   Notification to ITC re: inadequate domestic                                      the status; coordinator
      substantive response                                                             drafts notification letter
      Final FR Revoking Order due                 351.218(e)(1)(i)(C)(3)               Analyst drafts FR and
                                                                                       CBP revocation
 90
                                                                                       instructions, and
                                                                                       updates module
        If EXTENDED (highly unusual): Final Results         751(c)(5)(B) of the
        due no later than this date                         Tariff Act of 1930
                                                                                       Analyst drafts FR and
 180
                                                                                       CBP revocation
                                                                                       instructions, and
                                                                                       updates module


CHART #4 (no/inadequate respondent substantive response)(Expedited Sunset Review)
                                                    351.218(e)(1)(ii)(C)(1) Inform coordinator of
  50  Notification to ITC re: inadequate respondent                         the status; coordinator
      substantive response                                                  drafts notification letter
                                                    351.218(e)(1)(ii)(C)(2) Analyst drafts FR and
 120
      Final Results due                                                     I&D Memo


                                                       16
AD Manual                                                                              Chapter 25

       If EXTENDED: Final Results due no later        751(c)(5)(B) of the   Analyst drafts FR and
 210                                                  Tariff Act of 1930    I&D Memo
       than this date
       ITC announces decision

  0
       ITC publishes decision in FR
       Revocation/Continuation FR due                 351.218(f)(4)         Analyst drafts FR (and
                                                                            for Revocations, also
  7
                                                                            drafts CBP instructions
                                                                            and updates module)
       tbd = To Be Decided by the office handling the review
       PLEASE INCLUDE COORDINATOR ON THE FR CONCURRENCE SHEET




                                                 17

				
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